Citation Nr: 0602813
Decision Date: 02/01/06 Archive Date: 02/15/06
DOCKET NO. 04-33 543 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to compensation under 38 U.S.C. § 1151 for
neurological injury to the right lower extremity, claimed as
due to a right total hip arthroplasty performed on February
11, 2002, by the Department of Veterans Affairs.
2. Entitlement to service connection for a low back
disorder, to include as secondary to neurological injury to
the right lower extremity.
3. Entitlement to special monthly compensation for aid and
attendance/housebound status.
4. Entitlement to an effective date prior to June 10, 2002,
for the grant of a total disability rating for compensation
based on individual unemployability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Dillon, Counsel
INTRODUCTION
The veteran served on active duty from March 1947 to March
1950.
This matter arises before the Board of Veterans' Appeals
(Board) on appeal from a June 2003 rating decision and June
2004 rating decision from the Department of Veterans Affairs
(VA) Regional Office (RO) in Cleveland, Ohio.
REMAND
I. Service Connection For A Low Back Disorder And
Special Monthly Compensation
VA has a duty to notify the veteran of any information and
evidence needed to substantiate and complete a claim, notice
of what part of that evidence is to be provided by the
claimant, and notice of what part VA will attempt to obtain
for the claimant. 38 U.S.C.A. § 5103(a) (West 2002); 38
C.F.R. § 3.159(b)(1) (2005); Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002). The claims file does not show a letter
was issued by the RO that satisfies the duty to notify with
regard to these two issues, and this should be accomplished
on remand.
II. 1151
Assistance shall include providing a medical examination or
obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on
the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R.
§ 3.159(c)(4) (2005). A VA medical opinion is warranted to
address whether any additional disability is the result of VA
carelessness, negligence, or similar instance of fault or
whether such disability was an event that was not reasonably
foreseeable. 38 C.F.R. § 3.361 (2005).
Effective September 2, 2004, the final rules implementing the
amendments to 38 U.S.C. § 1151 were published. 69 Federal
Register 46433 (codified at 38 C.F.R. § 3.361). The RO has
not considered 38 C.F.R. § 3.361 (2005), and this too should
be accomplished on remand.
III. TDIU
In a June 2004 rating decision, the RO granted entitlement to
a TDIU, effective September 24, 2003. Notice of this
decision was sent to the veteran in correspondence dated in
June 2004. Thereafter, in correspondence received by VA in
July 2004, the veteran expressed disagreement with the
assigned effective date for the award of a TDIU. His written
statement is sufficient to constitute a timely Notice of
Disagreement as it was received within a year from the date
he was notified of the decision. See 38 C.F.R. § 20.201
(2005); Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002).
A review of the record, however, does not indicate that a
Statement of the Case addressing this specific issue was
furnished by the RO to the veteran in response to his timely
Notice of Disagreement. In a case in which a claimant has
expressed timely disagreement in writing with a rating action
of the RO, an appeal has been initiated, and the RO must
issue a Statement of the Case, and the Board must remand that
issue to the RO for that purpose. See Manlincon v. West, 12
Vet. App. 238 (1999).
In view of the foregoing discussion, the case is remanded for
the following actions:
1. The RO must review the claims folder
and ensure that all VCAA notice and duty
to assist obligations have been satisfied
with regard to the veteran's claims for
entitlement to service connection for a
low back disorder and entitlement to
special monthly compensation for aid and
attendance/housebound status. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002 & Supp. 2005). In
this regard, the veteran should be
provided a notice letter and specifically
told of the information or evidence he
needs to submit to substantiate his
service connection for a low back disorder
and special monthly compensation claims,
as well as the information or evidence
that VA will obtain, if any. 38 U.S.C.A.
§ 5103(a). The veteran should also be
asked to submit all pertinent information
or evidence in his possession. 38 C.F.R.
§ 3.159.
2. The RO must arrange for a physician
with appropriate expertise to review the
veteran's claims file and provide an
opinion, with supporting rationale, as to
whether the veteran has any additional
disability in his right lower extremity
as a result of a right total hip
arthroplasty performed by VA on February
11, 2002.
If additional disability and a causal
connection are found, the physician must
comment and provide supporting rationale,
on whether any additional right lower
extremity disability was the result of VA
carelessness, negligence, or similar
instance of fault or
whether such neurological disability was
an event that was not reasonably
foreseeable.
The physician's rationale must discuss
such factors as the veteran's condition
immediately before and after the treatment
in question, actual causation, whether
there was a continuance or natural
progress of a disease or injury, the
degree of care involved, and the level of
risk for the treatment provided. The
report prepared must be typed.
If the reviewing physician determines that
physical examination and/or diagnostic
testing of the veteran is necessary, such
must be scheduled. A typed report must be
prepared and associated with the claims
file.
3. The RO must readjudicate the claims on
appeal, with application of all
appropriate laws and regulations and
consideration of any additional
information obtained as a result of this
remand. The RO must document its
consideration of the September 2004
regulatory revisions for adjudicating
section 1151 claims. If any of the
decisions remains adverse to the veteran,
the RO must furnish him and his
representative a Supplemental Statement of
the Case and afford a reasonable period of
time within which to respond thereto.
4. The RO should provide the veteran and
his representative a Statement of the Case
as to the issue of an earlier effective
date for the grant of a TDIU. The veteran
must be informed that he must file a
timely and adequate substantive appeal in
order to perfect an appeal of this
issue to the Board. See 38 C.F.R.
§§ 20.200, 20.202, 20.302(b) (2005). If a
timely substantive appeal is filed with
respect to this issue, subject to current
appellate procedures, the case must be
returned to the Board for further
appellate consideration.
No action is required by the veteran until he receives
further notice; however, he may present additional evidence
or argument while the case is in remand status at the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
FINALLY, THE BOARD NOTES THAT THE VETERAN IS 77 YEARS OF AGE.
Hence, these claims must be afforded expeditious treatment.
The law requires that all claims remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).